With the draft of the new Human Rights and Anti-Discrimination Bill
in circulation, it was inevitable that the right-wing thunderers would be out in force. There would be a "chilling effect on free speech" according to the IPA's "Freedom Watch" (brought to you by ... a number of corporate interests they won't tell you about).
While in The Australian
, Greg Hunt says that the bill itself is un-Australian. Indeed. Perhaps a House committee on the activities of such should be convened. And the ever-reliable old ALP Grouper Bill Muehlenberg, of course, compared it to 1984
, and managed to approvingly quote Watergate lunatic Chuck Colson in the process.
That is all absurd hyperbole, all the more dangerous because it obscures the real dangers and demerits of the new act. Were there ever a situation where people were being thrown in jail Left, Right and centre for indulging in language or behaviour offensive to the eighteen different enumerated groups in the draft act, grouped by race, gender, s-xuality, etc, then the response would be immediate and the law would collapse immediately.
The danger with the proposed new law is that it is so particular, baroquely crafted and precise in what it attempts to police and to exclude from policing, that its operation would not be loud and upfront, but quiet, subtle and bogged down in detail. The act's effect on free speech would not be chilling, but muffling. It would slowly but steadily enforce the idea that the state should micromanage what people say. Eventually people will come to accept this as a purely procedural process, like renewing a dog license, or paying a parking fine on-the-spot.
You have to concede one thing to the drafters of Roxon's magnum opus
. It is a real "advance" in the art of human rights legislation in that it connects bans on offensive speech so neatly with harassment and discrimination. Essentially, the act is a "unified field theory" of such laws, fusing them into one. Hitherto, these have been kept separate, with harassment tied closely to physical action or threat, discrimination to the exercise of power, and vicious speech governed by vilification laws.
Now, each is expressed in terms of the other. So, while only racial vilification is specified as banned speech, discrimination based on offence or insult can be proven on eighteen different grounds, from political opinion, race, s-xuality and gender to potential pregnancy and breastfeeding.
Those are worthy things to defend from real discrimination and harassment -- someone not getting a job or a promotion because "you'll just have a baby" or similar -- but they come to grief with the insult and offence provision. Some of these eighteen attributes of potential discrimination/harassment -- such as political origin -- have been restricted to the workplace, but it still leaves plenty of scope for vexatious and pointless interventions into the mere act of human conversation -- of a somewhat abrasive character -- pivoting on the law.
Thus, say you're arguing with the office climate change denier, who's rabbiting on about sunspots and the upside-down hockey stick etc and you say to her/him: "if you believe that, you must be some sort of drooling moron". Banter where I come from, if not outright flirting, but let's say you have technical seniority over that moron. From my reading of the draft, that in itself would count as grounds for a discrimination/harassment claim -- even if no harm other than insult or offense is being alleged.
That is, the moron in question doesn't have to allege that they missed out on a promotion because they'd expressed their beliefs -- they simply have to establish that they were offended in a workplace context. I can't see any other way of reading sections 19-1,2 of the act:
So, presumably you can protect yourself if you call everyone in the office a drooling moron as well.
Unlike the valiant freedom watchers on the Right, I don't think that this sort of thing will shut down liberty. But it will add to the vexatious and vengeful claims that already rattle through the commissions (along with the many genuine ones). Most crucially, it concretises the idea that the ebb and flow of social behaviour can be micro-regulated, rather than empowering countervailing powers -- unions, advocacy groups -- to fight for a culture of equality and fairness at the social level.
The effect of this is to relieve people of both the obligation to be decent, and of the need to fight for it as a social good. Instead, the law takes over, and the idea that social life is just a shadow of power and process becomes enforced.
The real heart of this is the provisions on racial vilification, which are a Kafkaesque masterpiece. On the one hand the act imports the old provisions of the Racial Discrimination Act
, which bans offence or insult based on race. However, to deal with criticisms following the Bolt case -- that the old 18c provision shut down debate -- the act includes the following caveats. Insulting or offensive speech may not be vilifying if: